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Obtaining witness statements

163. The Appeals Chamber has not been placed in a position where it can determine just what the law on this point is in the former Yugoslavia. The material which the Respondent supplied to the Chamber as supporting what he had said does not demonstrate the existence of any law prohibiting lawyers from obtaining statements from witnesses directly and without intervention by the court or the police, but the material he supplied may be incomplete. However, whatever the law may be in the various parts of the former Yugoslavia, it must clearly be understood by counsel appearing in matters before this Tribunal that they are bound by the law of the Tribunal to act freely when seeking out witnesses. They are bound by the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, which (by Article 19) prevails where there is any inconsistency between it and any other code which counsel may be bound to honour. International law does not recognise any prohibition upon counsel such as asserted by the Respondent to exist in the former Yugoslavia, and States could not effectively legislate to frustrate the proper workings of the Tribunal in that way.

164. In the present case, the Respondent explained his resort to the military tribunal by his concern that, in an application pursuant to Rule 115 to present additional evidence to the Appeals Chamber, the Chamber would prefer the evidence to be on oath, and therefore would accept statements taken by an official organ of the country in which the witnesses reside. (The Appeals Chamber was informed that affidavits are unknown in the former Yugoslavia.) Such would certainly be an understandable concern. But it should again clearly be understood that counsel appearing before the Tribunal are not obliged to have statements taken from prospective witnesses in police stations or in courts or through any other official organs. Indeed, in most cases it would be unwise, and potentially counter-productive, to follow such procedures, because of the intimidating effect they may have on the witnesses themselves, and the perceptions which such procedures may create as to the influence of the State upon statements which are made in that way.